Daley v. Janel Tower L.P.

89 A.D.3d 408, 931 N.Y.2d 865

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 1, 2011
• Status: Published

Opinion

Defendants established their prima facie entitlement to judgment as a matter of law. Plaintiff alleges that she was injured when she fell on black ice in defendants’ parking lot, next to an area where defendants’ contractor piled snow after a snowfall. However, the climatological reports showed that it last snowed more than one week prior to plaintiffs fall and that during the three-day period prior to plaintiffs fall, temperatures remained well above freezing. Accordingly, the purported icy condition, consisting of a two-by-two-foot square, would not have formed under those circumstances (see Perez v Canale, 50 AD3d 437 [2008]; compare San Marco v Village/Town of Mount Kisco, 16 NY3d 111 [2010]).

In opposition, plaintiff failed to raise a triable issue of fact. Her affidavit in opposition to the motion, and the errata sheet of her deposition, which was not served on defendants until 11 months after her deposition, conflicted materially with her original description of the condition of the area where she fell (see Perez v Mekulovic, 13 AD3d 158 [2004]; see also Smith v Costco Wholesale Corp., 50 AD3d 499, 501 [2008]). Concur — Gonzalez, EJ., Tom, Sweeny, Renwick and Román, JJ.